Tara Leigh Grove (William & Mary Law School) has posted The Exceptions Clause as a Structural Safeguard (Columbia Law Review, Vol. 113, 2013) on SSRN. Here is the abstract:
Scholars have long viewed the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. In this Article, I argue that the Clause has been fundamentally misunderstood. The Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on recent social science research, I assert that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the Supreme Court’s mandatory appellate docket grew to the point that it was unmanageable for a single tribunal, Congress responded by exercising its authority under the Exceptions Clause. Congress made “exceptions” to the Court’s mandatory appellate jurisdiction and replaced it with discretionary review via writs of certiorari — precisely so that the Court could concentrate its limited resources on resolving important federal questions. This analysis thus turns on its head one of the central assumptions underlying the scholarship on jurisdiction stripping: that any “plenary” congressional power under the Exceptions Clause is something to be feared. I demonstrate that Congress has used its broad “exceptions” power to safeguard the Supreme Court’s essential role in the constitutional scheme.
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